BABUBHAI BHIMBHAI BOKHIRIA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THE petitioner has invoked Articles 226 and 227 of the Constitution and Section 482 of the Code of Criminal Procedure, 1973 ('the Cr.P.C.' for short) for the prayer to set aside the order dated 29 -3 -2008 below Exh. 225 of Additional Sessions Judge, Porbandar whereby the petitioner is ordered to be summoned as accused person by a bailable warrant under Section 319 of Cr.P.C. The petition has come up for final hearing and disposal at a critical stage when, after the initial admission and ex -parte injunction against the impugned order on 3 -4 -2008, the matter has reached the Supreme Court and directions as under are issued on 14 -11 -2008 in S.L.P. (Cri.) Nos. 3911 of 2008 and 4039 of 2008:

(2.) IN the context of almost all the prosecution witnesses, numbering around 140, having been examined in the trial Court and the judgment being likely to be pronounced shortly, as stated at the Bar, the proposal for calling for records and proceedings for a comprehensive view of the facts and material on record was strongly objected; and it was at the instance of the Court that arguments for final disposal were commenced and addressed on day -to -day basis since 1 -12 -2008.

(3.) IT is the case of the petitioner that, at the fag -end of the trial when not less than 134 witnesses were already examined, the application Exh. 225 came to be filed by the son of deceased on 7 -3 -2008 for joining the petitioner as an accused person in exercise of the power under Section 319 of Cr.P.C., even as the main and interested witnesses had also not made any definite statement before the Court or investigating agency about involvement of the petitioner in the offences being tried. It was submitted that a person cannot be arraigned as an accused person merely on the basis of a suspicion or for making a fishing inquiry or on the basis of allegations of biased or imperfect investigation. Relying upon judgment of the Supreme Court in Guriya v. State of Bihar : 2007 (8) SCC 224, it was submitted that a person can be added as accused only on the basis of evidence adduced before the Court and not on the basis of materials available in the charge -sheet or the case diary, because such materials contained in the charge -sheet or the case diary do not constitute evidence. The discretion of the Court must be exercised judiciously and it being an extraordinary power, it should be used very sparingly and only if compelling reasons exist. The word 'evidence' in Section 319 contemplates evidence of witnesses given in Court. Relying upon judgment of the Supreme Court in Palanisamy Gounder v. State Represented by Inspector of Police 2005 (12) SCC 327 and Michael Machado v. Central Bureau of Investigation : 2000 (3) SCC 262, it was submitted that the Court must have reasonable satisfaction from the evidence already collected during trial that some person, who is not arraigned as an accused, had committed an offence, and for such offence, that other person could as well be tried along with the other accused. The discretionary power conferred upon the Court should be exercised only to achieve criminal justice. The stage at which trial has proceeded already and the quantum of evidence collected till then, as also the time which the Court had spent for collecting such evidence have to be taken into account. If the witnesses already examined are quite large in number, the Court must seriously consider whether the objects sought to be achieved by exercise of the power under Section 319 are worth wasting the whole labour already undertaken. Unless the Court is hopeful that there is a reasonable prospect of the case as against the newly -brought accused ending in his conviction, the Court should refrain from adopting such a course of action.